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Decoding M&A Regulations in the USA: A Guide for Mid-Market Transactions

July 9, 2024

Selling your mid-sized business in the United States requires more than strategic planning and financial analysis; it demands a thorough understanding of the complex mergers and acquisitions (M&A) regulatory landscape.

Here’s an insight into the current M&A regulations in the United States, focusing on key considerations and compliance requirements that are crucial for mid-market transactions.

Regulatory Framework for M&A in the United States

The regulatory framework governing mergers and acquisitions in the United States is multifaceted, involving federal and state regulations, as well as oversight from regulatory bodies.

Before we dive into the legalese it is, however, important to note that it’s not necessary for any business owner planning to sell their business to know the ins-and-outs of all these regulations, provided they work with an experienced M&A Advisory firm. That’s because any M&A Advisor worth their salt will have specialized mergers and acquisitions tax and legal practitioners on their team to ensure compliancy throughout the sales process. So, unless you’re planning to go-it-alone, there’s no need to get overwhelmed by the litany of legalese that regulates M&A transactions in the USA!

With that said, let’s take a brief look at the key components that make up the mid-market M&A regulatory framework in the USA:

1 | Antitrust Laws in the United States

Sherman Act: Enacted in 1890, the Sherman Act is the cornerstone of antitrust laws. It prohibits anticompetitive practices, including price-fixing, bid-rigging, and market allocation.

Clayton Act: Passed in 1914, the Clayton Act complements the Sherman Act by addressing issues such as mergers and acquisitions that may substantially lessen competition or tend to create a monopoly.

Hart-Scott-Rodino (HSR) Act: The HSR Act requires companies involved in certain large transactions to file pre-merger notifications with the Federal Trade Commission (FTC) and the Antitrust Division of the Department of Justice (DOJ).

2 | Securities Regulations in the United States

Securities Act of 1933: This Act regulates the offer and sale of securities. In the context of M&A, it is crucial to comply with registration requirements and provide accurate information to investors.

Securities Exchange Act of 1934: Regulating the secondary trading of securities, this act imposes reporting requirements on companies with publicly traded securities. M&A transactions often trigger disclosure obligations under this act.

3 | Foreign Investment Regulations in the United States

Committee on Foreign Investment in the United States (CFIUS): CFIUS reviews transactions that could result in control of a US business by a foreign person, ensuring that national security considerations are addressed. Mid-market companies involved in M&A with foreign entities should be aware of the CFIUS review process.

4 | Tax Considerations in the United States

Internal Revenue Code: Tax implications are a critical aspect of M&A transactions. Understanding the tax consequences and obligations under the Internal Revenue Code is essential for mid-market players seeking to optimize their financial structure post-transaction.

5 | Labor and Employment Laws in the United States

Worker Adjustment and Retraining Notification (WARN) Act: M&A transactions may trigger the WARN Act, which requires employers to provide advance notice of certain workforce reductions. Mid-market companies should assess their compliance obligations and mitigate potential risks related to workforce transitions.

Key Considerations for Mid-Market M&A Compliance

To ensure mid-sized business owners remain compliant with all legal, labor and tax regulations during a merger or acquisition process, there are some important steps to follow:

1 | Ensure Early Regulatory Analysis

Initiate a comprehensive regulatory analysis early in the M&A process. Identifying potential regulatory hurdles and compliance requirements at the outset allows for strategic planning and risk mitigation.

If you work with an expert M&A firm, all these considerations will be taken into account at the beginning of the process and included in the deal timeline. For example, Woodbridge International has a strict 150-day deal timeline that will incorporate steps to be taken following this early regulatory analysis.

2 | Engage Legal Counsel

Mid-market companies will always benefit from legal counsel experienced in navigating the complexities of the M&A regulatory landscape, ensuring compliance with federal and state laws. If you’re working with a seasoned M&A Advisory firm like Woodbridge International, the services of legal experts specializing in M&A regulations will be provided to you.

3 | Stay Alert for Antitrust Scrutiny

Be vigilant about potential antitrust issues. Mid-market transactions that could raise concerns about market competition or monopolistic practices may undergo scrutiny from antitrust authorities. The legal experts in your M&A Advisory team will ensure any potential antitrust issues are identified and dealt with early on in the process.

4 | Include Regulatory Compliance in Due Diligence

Incorporate regulatory due diligence into the overall due diligence process. Assess the target company’s compliance history and identify any potential liabilities or ongoing regulatory investigations. Due diligence and regulatory compliance are among the range of services provided by expert M&A firms (more on the services offered by M&A firms here).

5 | Maintain Clear Communication with Regulators

Maintain transparent and clear communication with relevant regulatory bodies. Timely and accurate reporting, especially under the HSR Act, is crucial for demonstrating compliance and avoiding penalties. The legal experts on a M&A Advisory team will ensure that all these communications are handled professionally and timeously.

6 | Factor Regulatory Compliance into Integration Planning

As part of integration planning, consider the implications of regulatory compliance. Develop strategies to streamline compliance processes and ensure a smooth transition post-merger. Seasoned M&A firms have decades of experience in this and are well-placed to advise on how to streamline compliance processes during the seller-to-buyer transition.

Challenges Navigating M&A Regulations for Mid-Market Transactions

The mergers and acquisitions landscape is complex and ever-changing. In general, the two major challenges for mid-sized M&A transactions are:

1 | Changing Regulatory Landscape

Mid-market companies must stay abreast of changes in the regulatory landscape because evolving laws and regulations can impact the M&A process. This is why it is crucial to work with an expert M&A firm that has mergers and acquisitions legal specialists on their team. These “legal eagles” will be up to date with the latest M&A regulations to ensure compliancy throughout the process.

2 | Resource Constraints

Unlike larger corporations, mid-market players may face resource constraints in terms of legal and compliance expertise. Strategic allocation of resources is essential to address regulatory challenges effectively. Working with an M&A firm will give business owners the upper hand in this challenge,as the firm’s M&A experts will be able to advise on the best and most efficient allocation of resources.

Hire a Partner to Clear All Regulatory Hurdles

It’s apparent that selling a mid-sized business in the United States is not as easy as putting up a “for sale” sign and selling to the highest bidder; sellers need to navigate a wide range of antitrust laws, securities regulations, foreign investment considerations, tax implications, and labor laws.

The good news is you don’t have to do it alone; you can hire an expert M&A firm to navigate the complex M&A regulatory landscape. By doing so, you’ll free yourself up to focus on the most important goal: making sure your business is at peak operational performance in order to attract the best buyer, at the best bid.

Interested in learning more about what an M&A Advisory firm can do for your mid-sized business sale? Contact us today to set up an obligation-free meeting.